If you are sued by a former employer for breaching a non-solicitation agreement in Ontario, you will typically need to pay a lawyer an initial retainer of $5,000 to $10,000 CAD. Taking the defence all the way to a full trial at the Superior Court of Justice can easily cost between $20,000 and $50,000+ CAD.
Leaving a job to start your own business or join a competitor is a normal career progression in bustling hubs like Toronto, Kitchener, or Ottawa . However, the transition can quickly turn into a nightmare if your former employer serves you with a lawsuit, claiming you “stole” their clients or poached their staff. Defending against a breach of a non-solicitation or confidentiality clause is high-stakes civil litigation. Former employers often seek massive financial damages or an emergency court injunction to legally shut down your new business operations. Because the financial risks are so severe, trying to represent yourself is virtually impossible; you need a skilled Ontario employment litigation lawyer to build a robust defence.
Step-by-Step Process When Sued in Ontario
Receiving legal documents from a process server is intimidating. The actions you take in the first few weeks will heavily dictate the cost and outcome of your case.
Step 1: Receiving the Statement of Claim
The lawsuit officially begins when you are served with a Statement of Claim or an application for an interlocutory injunction 🗂. You have a very strict timeline-usually just 20 days in Ontario-to officially respond. Do not ignore these documents, and absolutely do not delete any emails, text messages, or client lists. Destroying evidence can severely damage your defence and lead to massive judicial penalties.
Step 2: Retaining an Employment Lawyer
You must immediately hire an employment lawyer who specializes in post-employment restrictions . During your initial strategy meeting, the lawyer will scrutinize the non-solicitation clause you originally signed. In Ontario, courts frequently throw out restrictive covenants if they are worded too broadly, last for an unreasonable amount of time (e.g., more than 12 months), or cover too wide a geographic area.
Step 3: Filing a Statement of Defence
Your lawyer will draft and file a Statement of Defence. They may argue that you never actively solicited the clients (i.e., the clients simply chose to follow you of their own free will), or that the clause itself is legally void under Ontario common law. Following this, both sides will engage in the “discovery” process, exchanging emails and documents to prove their respective cases before negotiating a potential settlement.
How Much Does it Cost to Defend a Non-Solicitation Claim?
Litigation is inherently expensive because it requires dozens or hundreds of hours of legal work, court appearances, and document review.
| Legal Expense | Average Cost (CAD) | Description |
|---|---|---|
| Initial Retainer Fee | $5,000 – $10,000 | An upfront deposit your law firm requires before starting work. |
| Lawyer Hourly Rate | $350 – $750 per hour | Billed for drafting documents, legal research, and negotiations. |
| Defending an Injunction | $10,000 – $25,000 | An intense, fast-paced court battle to stop the employer from freezing your business. |
| Full Trial Costs | $30,000 – $75,000+ | The total estimated cost if the case goes all the way to a final judge’s ruling. |
How Long Does the Legal Process Take?
While an emergency injunction hearing can happen within a matter of days or weeks, a full civil lawsuit moves very slowly ⏱. If the case proceeds through the Ontario Superior Court of Justice without an early settlement, the entire litigation process-from the Statement of Claim to the final trial-typically takes 1.5 to 3 years. Most cases, however, are settled out of court through mediation within 6 to 12 months.
Frequently Asked Questions (FAQ)
What is the difference between non-solicitation and non-compete?
A non-compete prevents you from working in the same industry entirely, which is largely illegal in Ontario for most employees. A non-solicitation clause allows you to work in the industry but legally forbids you from actively contacting your former employer’s specific clients or poaching their staff.
What happens if a former client contacts me first?
If a client seeks you out completely on their own without any prompting or marketing directed at them, Ontario courts generally do not consider this a breach of a non-solicitation agreement. However, you must have strong evidence (like an initial email from the client) to prove you did not solicit them.
Can I force my former employer to pay my legal fees?
If you successfully defend the lawsuit and the judge rules entirely in your favour, the court will typically order the former employer to pay a portion of your legal costs (usually about 50% to 60%). This is known as a partial indemnity costs award.
Can announcing my new job on LinkedIn get me sued?
It can be risky. While a general post stating “I have started a new job at Company X” is usually acceptable, directly messaging former clients on LinkedIn to inform them of your move can be viewed by Ontario courts as active solicitation, potentially triggering a lawsuit.
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